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Flashcards in Evidence Deck (81):

Judicial notice

Judicial notice may be taken of adjudicative fact if it is not subject to reasonable dispute because (1) generally known within the community, or (2) can be accurately and readily determined from reliable sources; must take notice if party makes request and supplies necessary info

FRE: conclusive only in civil cases
CA: conclusive in civil and criminal cases



(1) probative (tendency to make a fact more or less probable than it would be without the evidence); (2) material (the fact is of consequence in determining the action)

CA - relevant evidence must be relevant to a disputed fact


Rule 403 exclusion

If the probative value is substantially outweighed by the danger of unfair prejudice (confusing issues, misleading jury, undue delay, wasting time needless presentation of cumulative evidence)


Character evidence (civil cases)

inadmissible to prove propensity; admissible when character is an essential element of claim or defense (by reputation, opinion or specific instance)


character evidence (defendant's character)

By P: not permitted to introduce evidence to prove propensity to commit crime. Can offer rebuttal evidence once D offers evidence of his good character (or victim's bad character)

By D: can introduce evidence of good character as being in consistent to the type of crime charged, must be pertinent to the crime (reputation/opinion testimony)

CA-- D can introduce evidence of relevant character trait or of his character in general


Character evidence (victim's character)

By D: can introduce reputation/opinion evidence of victim's character when relevant to asserted defense

CA: can use reputation, opinion or specific acts

By P: after D introduce evidence of bad character, can offer rebuttal evidence of good character; can also introduce trait for peacefulness in homicide case to rebut evidence that victim was first aggressor

CA: can't rebut with character evidence of V's peaceful nature unless D introduced evidence of V's violent nature


Prior bad acts

not admissible to show criminal propensity; MIMIC evidence admissible

Civil: specific acts can be used when character evidence is essential element of claim/defense

Criminal: when character is an essential element of charged crime, D can offer specific prior acts inconsistent with element of crime

Cross-exam: character witness can be asked about specific acts committed by a person the witness is testifying about


Habit evidence

A person's particular routine reaction to a specific set of circumstances; admissible to prove person acted in accordance with habit on a particular occassion


Judge as witness

FRE: Judge cannot testify at trial

CA: judge can testify if neither party objects


Juror at witness

Juror can testify at trial about bribery or failure to follow court's instructions; after trial, can testify about (1) extraneous prejudicial info brought to jury's attention; (2) improper outside influence or (3) mistakes on verdict form

CA: juror any provide info to judge on any improprieties that may have affected the jurors


Dead Man Statute

In criminal cases, a party with financial interest in outcome could not testify about a communication/transaction with a person whose estate was party to the case and testimony was adverse to estate

CA: No dead man statute


Witness's character for truthfulness (opinion/reputation)

Cannot bolster witness credibility unless truthful character is directly attacked.

CA: criminal D can bolster testimony for honesty without impeachment attempt by P

Opinion/reputation testimony to impeach


Crimes involving dishonesty/false statement

Can be used to impeach any witness for any conviction (felony or misdemeanor) involving dishonesty or false statement, subject to 10 year restriction

CA: a felony crime conviction can be used to impeach a witness if it involved moral turpitude


Convictions not involving dishonesty/false statement

admissible to impeach witness only if crime is punishable by death/imprisonment more than one year, subject to 10 year restriction

If witness is criminal D: admissible only if its probative value outweighs the prejudicial effect to that D

Other witnesses: generally admissible unless its probative value is substantially outweighed by its prejudicial effect

CA: misdemeanor conviction can be used in criminal cases (can't be used in civil cases) if it involves moral turpitude


Conviction or release more than 10 years ago

admissible if probative value substantially outweighs prejudicial effect and reasonable written notice of intent to use evidence


Juvenile adjudication

not admissible to impeach D's character for truthfulness; may impeach other witness if (1) offered in criminal case; (2) an adult conviction for that offense would be admissible and (3) admitting it is necessary to determine guilty or innocence


Prior inconsistent statement

Can be used to impeach if inconsistent with material part of witness's testimony (extrinsic evidence allowed if witness given opportunity to explain/deny, and opposing party given opportunity to examine witness about it)

CA: all prior inconsistent statements admissible for their truth and as substantive evidence


Impeachment of hearsay declarant

can be attacked by any evidence admissible if declarant had testified as witness; need not be given opportunity to explain/deny any inconsistent statement/conduct; if declarant called as witness, can be examined as if under cross-exam

CA; cannot use leading questions when cross-examining hearsay declarant


Rehabilitation of witness

explain/clarify on redirect examination; offer opinion/reputation evidence of witness's character for truthfulness (only if attacked on this ground); offer prior consistent statement to rebut charge that witness lied

CA: prior consistent statement is admissible as substantive evidence


Religious opinions and beliefs

cannot be used to impeach credibility but admissible to show bias/interest


Contradictory evidence

can be used to impeach if contradicts witness's testimony, including use of contradictory material extrinsic evidence or by cross-exam


Past recollection refreshed

a witness may examine any item to refresh the witness's present recollection; testimony must be based on refreshed recollection, not on item; adverse party may inspect item, cross-exam and enter relevant portions into evidence

CA: a failure to produce a writing that was used to refresh a witness's memory will cause the testimony to be striken


Lay witness opinion

admissible if based upon the perception of the witness (common sense impressions) and helpful to a clear understanding of the witness's testimony or determination of fact in issue


Expert witness testimony

subject matter must be scientific, technical, specialized knowledge (reliability of testimony) that helps trier of fact understand the evidence or determine a fact at issue (relevance of testimony); may not state opinion about whether D had requisite mental state

CA: applies Frye test and requires preliminary showing that the scientific theory is generally accepted as valid and reliable in scientific field


Qualified expert

(1) witness is qualified as expert by knowledge, skill, experience, training or education; (2) testimony is based on sufficient facts or data; (3) testimony is product of reliable principles and methods; (4) the witness applied the principles and methods reliably to the facts of the case



all tangible evidence must be authenticated with sufficient evidence to support a finding that the thing is what its proponent claims it is


authentication of physical objects

generally authenticated through person knowledge, distinctive characteristics, or chain or custody


authentication of x-rays, electrocardiograms

process used was accurate, machine works, operator is qualified; chain of custody


Authentication of documentary evidence

stipulation, eyewitness testimony or handwriting verification


Ancient documents

FRE: at least 20 years old, in a condition unlikely to create suspicion and found in a likely place if it were authentic

CA: at least 30 years old may be authenticated by comparison to a different document that appears to be authentic and has been treated as authentic; a dispositive document (deed or will) is presumed to be authentic if it (1) does not look suspicious; (2) found in a place where it would likely be if authentic; (3) has been treated as authentic by people who care about its authenticity


Best evidence rule

CA: secondary evidence rule

Original document (or reliable duplicate) must be produced to prove contents of a writing when the contents are at issue or when a witness is relying on the contents when testifying


Best evidence rule (duplicates)

A duplicate is considered reliable unless there's a genuine question as to authenticity of the original; handwritten copies are not duplicates and admissible only when original or duplicate is lost

CA: handwritten copy is allowed as duplicate


Best evidence rule (original)

Original is not required when originals are lost or destroyed (in good faith), the party against whom the original would be offered failed to produce it; or document is not closely related to a controlling issue


Confidential communication

necessary for privilege to apply; if overheard, privilege is destroyed unless (1) no knowledge of third party's presence; or (2) third party is necessary to assist in the communication


Waiver of privilege

Privilege holder (1) fails to timely assert it; (2) voluntarily discloses the communication; (3) contractually waives it in advance

CA: waiver by one privilege holder does not affect rights of any other privilege holder


Spousal immunity

FRE: married person cannot be compelled to testify against spouse in any criminal proceeding; applies to testimony about events before/during marriage; expires upon divorce

CA: applies to civil and criminal proceeding

Witness spouse holds privilege; cannot be later invoked if waived


Confidential marital communications

Spousal communications during marriage is privileged when made in reliance on sanctity of marriage; both spouses hold privilege in civil and criminal cases; begins with marriage and continues indefinitely

FRE: does not apply when one spouse sues another or spouse is charged with crime against spouse or children

CA: does not apply when one spouse sues another or spouse is charged with crime against the other, the children, parent, relative, cohabitant; bigamy; or when communication made to aid/plan a crime


Physician-patient privilege

statement privileged as long as it was made for purpose of obtaining medical treatment; patient holds privilege

Exception: (1) info acquired for reasons other than treatment; (2) patient's physical condition is at issue; (3) statement is part of crime; (4) dispute between patient/doctor

CA: statement must be made to license physician; applies to treatment or diagnosis; does not apply in criminal cases


Psychotherapist-patient privilege

Patient holds the privilege; no privilege if the patient's mental condition is at issue, the statement was the result of a state-ordered examination or case is a commitment proceeding against D

CA: in addition, no privilege is patient is a danger to himself/others or patient is under 16 and possible victim of crime


Subsequent remedial measures

Not admissible to prove negligence, culpable conduct, defective product/design, need or warning/instruction; admissible for impeachment or ownership/control or feasibility of precautionary measures

CA: exclusion only applies to negligence/culpable conduct (not strict liability), benevolent gestures not admissible


Compromise offers and negotiations

not admissible by either party to prove/disprove validity or amount of disputed claim or for impeachment by prior inconsistent statement or contradiction

Admissible to prove bias or prejudice of witness, negate claim of undue delay or prove obstruction of criminal investigation


Evidence of payment, offers or promise to pay medical expenses

not admissible to prove liability for injury, but statements that accompany the payment, offer or promise to pay are admissible

CA: both the statement and offer are inadmissible to prove liability


Plea negotiation

Withdrawn guilty please, pleas of no contest, statements made in plea negotiation/proceeding are inadmissible


Liability insurance

Not admissible to prove whether a person acted negligently or wrongfully; admissible to prove agency, ownership/control, or witness's bias/prejudice

CA: only prohibition is using liability insurance to show that the insured person acted negligently or wrongfully


Sexual conduct (victim's conduct in criminal case)

(1) evidence of sexual behavior/predisposition generally not admissible in any proceeding involving sexual misconduct;

(2) specific acts are admissible to prove D was not source of physical evidence in criminal case;

(3) specific evidence of sexual behavior with person accused of sexual misconduct is admissible if offered by D to prove consent or if offered by prosecution

Opinion/reputation evidence of victim's sexual behavior or predisposition not allowed


Sexual conduct (defendant's conduct)

evidence of prior commission (not limited to convictions) of sexual assault is admissible in criminal/civil case to prove any relevant matter (not limited to convictions)

CA: only applicable in criminal case



Out of court statement (oral, written, assertive nonverbal conduct) that is offered to prove the truth of the matter asserted

Statement is not hearsay if offered to prove something other than truth of matter (e.g., legally operative facts, effect on recipient, state of mind, and impeachment)


Prior statements

declarant must testify at present trial to be admissible; cannot apply if witness is dead or otherwise unavailable to testify


Prior inconsistent statements

FRE: made under penalty of perjury are admissible to impeach declarant's credibility and as substantive evidence; if not made under oath, can only be used to impeach

CA: doesn't need to be under oath to impeach or as substantive evidence


Prior consistent statements

admissible to (1) rebut an express/implied charge that declarant recently fabricated it or acted with improper motive; or (2) rehabilitate the witness's credibility when attacked on other grounds; must be made before declarant had reason to fabricate

CA: statement must have been made before alleged inconsistent statement


Prior statement of identification

made after perceiving that person admissible as non-hearsay even if witness has no memory of identification

CA: memory must be recent; must testify that at time statement was made, she believed it to be true


Opposing party statement

made by party to the current litigation, admissible even without personal knowledge, can be in form of an opinion; need not have been against party's interest at time it was made


Judicial admission

admission made during pleading, discovery process or other proceeding is conclusive evidence; withdrawn guilty plea generally not admissible in subsequent proceedings


Adoptive admission

a statement of another person that a party expressly or impliedly adopts as his own. Silence in response to a statement is considered an adoptive admission if: (1) person was present and heard and understood the state; (2) person had ability and opportunity to deny the statement; (3) a reasonable person similarly situated would have denied the statement


Vicarious statements

statement made by one person imputed to another based upon the relationship between them (employer/employee, authorized speaker, co-conspirator during and in furtherance of conspiracy)


Unavailable declarant

exempt on grounds of privilege; refuses to testify despite court order; lacks memory of subject matter of statement; dead, infirm, physical or mental disability; absent and cannot be made present

CA: lack of memory does not render declarant unavailable


Former testimony

Given as witness at trial, hearing or lawful deposition is not hearsay if party against whom the testimony is offered had an opportunity and similar motive to develop the testimony

CA: no privity requirement (the same party who the testimony is offered against does not have to be at original testimony; the original party must have had same ability to cross-examine the witness)


Dying declaration

Declarant believes her death is imminent and statement pertains to cause/circumstances of her death (does not need to die); applies only to homicide and civil cases

CA: admissible in all cases; declarant must have died; statement must be about cause of death


Statement against interest

was against D's (proprietary/pecuniary, invalidated D's claim against someone, exposed D to civil/criminal liability) interest at time it was made and a reasonable person would not have made the statement unless it was true; a statement subjecting D to criminal liability is not admissible unless corroborating circumstances clearly indicate trustworthiness of statement

CA: (1) was so far contrary to D's pecuniary/proprietary interest; (2) so far subjected him to risk of civil/criminal liability; (3) so far tended to render invalid a claim by him against another; or (4) created such a risk of making him an object of hatred, ridicule or social disgrace in the community


Statement of personal/family history

birth, adoption, marriage, divorce or other similar fact of personal or family history


statement against party that cause declarant's unavailability

statement offered against a party that wrongfully caused unavailability of declarant


Present sense impression

statement explaining/describing event/condition made while or immediately after declarant perceived it

CA: "contemporaneous statement" --statement offered to explain/make understandable declarant's conduct and made while declarant was engaged in such conduct. Like a verbal act


Excited utterance

statement about startling event/condition made while declarant is under stress of excitement that it caused


Statement of mental, emotional or physical condition

Statement of then-existing state of mind (present intent, motive or plan) can be used to prove conduct in conformity with state of mind or emotional, sensory or physical condition (mental feeling, pain or bodily heath made at that time to prove existence of condition but not its cause)

CA: there is an explicit trustworthiness requirement that must be present as foundational element for statements of then-existing statement of mind; past state of mind, emotion, sensation or physical condition can be admissible under certain circumstances (child abuse cases)


Statement made for medical diagnosis/treatment

describing medical history or past/present symptoms if made for purpose of medical diagnosis or treatment; statement of cause/source of condition admissible if reasonably pertinent to diagnosis/treatment; can be made to medical personnel or family members, need not necessarily be made by patient

CA: only applies to minor victim's statement if made when victim was under 12 and describing child abuse/neglect


Recorded recollection

(1) witness is unable to testify about matter; (2) the record is on matter that the witness once knew; (3) record made when matter was fresh in witness's memory; (4) accurately reflects the witness's knowledge; (5) witness states she cannot recall the even well enough to testify fully and accurately even after consulting record

May be read into evidence, but only received as exhibit if offered by adverse party


Business records

(1) kept in course of regularly conducted business activity; (2) making of records was a regular practice; (3) record was made at or near time by someone with knowledge

Must be authenticated by custodian/other qualified witness/self-authenticated if properly certified

CA: allows a record made by business under unusual (not regular) circumstances and requires authentication indicating trustworthiness


Public record

statement of public office or agency sets out: (1) activities of the office; (2) observation of a person under duty to report (but not police in criminal case); or (3) factual findings of a legal investigation


Learned treatises

a statement in a treatise, periodical or pamphlet is not excluded if (1) an expert witness relied on the statement during direct/cross-exam or called to expert's attention on cross-exam; and (2) publication is a reliable authority by admission or testimony of expert witness or judicial notice

Can be read into evidence, publication itself can't be received as exhibit

CA: only allows works that are historical, books of science/art, and published maps/charts


Judgment of previous conviction

final judgment entered after trial/guilty plea; conviction was for crime punishable by death or imprisonment for more than one year; and evidence is offered to prove any fact to sustain the judgment

If P offers it in criminal case for purposes other than impeachment, judgement must have been against D.

CA: a felony conviction is admissible in any civil case regardless of whether judgment was based on plea of nolo contendere


Oral statements

Oral statements may need to be authenticated as to the identity of the speaker in cases in which the identity is important. A voice can be identified by any person who has heard the voice at any time.


Leading questions

Direct—not permitted unless hostile witness, needed to develop witness’s testimony (background questions not in dispute), or witness struggles with communication

Cross-examination—no restrictions on using leading questions


Prop. 8

Under Proposition 8 of the California Constitution (hereafter Prop. 8), any evidence that is relevant may be admitted in a criminal case. However, Prop. 8 makes an exception for balancing under California Evidence Code (CEC) 352, which gives a court discretion in excluding relevant evidence if its probative value is substantially outweighed by a risk of unfair prejudice, confusion of issues or misleading the jury.


Improper questions

(1) compound question; (2) assumes facts not in evidence; (3) argumentative; (4) calls for a conclusion or opinion that the witness is not qualified to make; (5) repetitive



When the witness's response constitutes an answer to a question other than the one that was asked, or goes beyond the scope of the original question, it is considered nonresponsive and should not be admitted into evidence.


Inadvertent disclosure

Inadvertent disclosure of privileged info, not a waiver if holder of privilege took reasonable steps to prevent disclosure and promptly took steps to rectify error


Extrinsic evidence or prior inconsistent statement

Extrinsic evidence of prior inconsistent statement admissible if witness can explain/deny statement and opposing party can examine witness (not required for hearsay declarants)

CA: extrinsic evidence made in writing admissible without actual showing of document


Victim's sexual conduct in civil case

admissible in civil case if probative value substantially outweighs danger of unfair prejudice; reputation evidence only admissible if reputation is placed in controversy by victim

restriction on evidence applies when party against whom evidence is offered can be characterized as victim of sexual misconduct


Best evidence rule (admission by party)

can prove contents by testimony, deposition or written statement of party against whom evidence is offered; no need to bring original

BUT if the party admits to the contents in an oral statement out of court (other than depo) then BER applies


Confrontation clause

In criminal trial, in order to admit an out of court testimonial statement of a declarant (hearsay) against a defendant: (1) declarant must be unavailable and (2) defendant must have had prior opportunity to cross-exam the declarant

does not preclude dying declaration


Character for truthfulness (specific instance)

specific instances of conduct admissible only on cross-exam if probative of witness's truthfulness or truthfulness of another witness about whose character the witness testified about; no extrinsic evidence

good faith basis for believing misconduct occurred before asking witness about it; cannot be cross-examined about the arrest, but can ask about underlying conduct that led to arrest

CA: evidence of prior bad acts only admissible in criminal cases and may use extrinsic evidence